Examining the boundaries of the Second Amendment

Since the massacre at Newtown, Second Amendment rights have come under renewed scrutiny.

In the aftermath of tragedy, America once again finds itself steeped in a debate about the nature and scope of certain foundational rights.

Our nation's recent history has featured a series of cascading crises – from 9/11 to Sandy Hook to the Boston Marathon bombings. Throughout this period, our society has struggled with how to effectuate public safety within the context of our tradition of individual, constitutional liberties.

This tradition has come under increasing strain in our complex and interconnected world. Today, localized, violent acts can cause nationwide fear and disruption. Such events constitute undeniable tragedies, and in their wake the public has looked to its government for decisive action. In responding to these kinds of crisis events, officials have moved quickly to implement preventive security measures, and in doing so have sometimes targeted legal traditions that protect individual liberties, or constrain governmental conduct. Such events are occurring as this is being written, as the FBI attempts to stretch the boundaries of the public safety exception to the Miranda rule in its questioning of a suspect in the Boston bombing case.

As tragedy has pressed against the policy world, policymakers have pressed against many components of the Bill of Rights, including the Second Amendment. Since the massacre at Sandy Hook Elementary, legislatures have sought to curtail future violence through restrictions on firearms. Some of these proposals (such as Connecticut’s expanded assault weapons ban) have passed, while others have not gained political traction.

Like other constitutional rights, the Second Amendment has a core that must be protected, and outer margins that allows regulation. Unlike other rights, its case-law tradition is quite limited, and courts are still working toward a consensus about what its parameters might be.

In the context of recent legislative activity, it is important for Americans to arrive at a more nuanced understanding of the boundaries of the Second Amendment. Doing so will help the public discern policy responses that have a chance of reducing preventable violence, from those that infringe on guaranteed freedoms.

The right to keep and bear arms

Matt Ehling

This essay assumes the existence of an individual Second Amendment right to keep and bear some class of arms, and does not seek (in this limited space) to articulate the entire tradition of individual gun rights that stretches from the English Bill of Rights to William Blackstone to the Anti-Federalists, and beyond.

In brief, the Second Amendment functions much as its other companions in the Bill of Rights: It provides a bulwark against government intrusion into a specific area. At the same time, the amendment is somewhat unique in that the individual liberty set out in the amendment’s operative clause — “the right of the people to keep and bear arms shall not be infringed” — is combined with additional, “prefatory” language that relates to its utility in a militia context.

This additional text, however, does not negate the underlying individual guarantee. (Again, commentaries by Blackstone and early Americans describe a tradition of individual gun rights that extends to self-defense and other purposes.)

The Second Amendment’s militia clause speaks to concerns of the founding generation about possible oppression by the standing armies of a centralized government. Particularly for the Anti-Federalists who agitated for the adoption of a bill of rights, the remedy for such a concern was found in a privately armed population that could constitute a militia if so needed. In recent decades, however, the existence of this clause has given rise to claims that the amendment does not, in fact, protect any individual right, but only a state’s right to maintain a militia.

Due to scant Supreme Court guidance about the interpretation of the Second Amendment, legislatures were able to regulate firearms at their discretion for many years, without substantially confronting legal questions of individual rights. The 1994 assault weapons ban was enacted within such a context, for instance.

Interpretive challenge

The creation of Second Amendment case law poses a unique challenge, in that abuse of the right can pose a tangible danger to public safety. For years, government officials have used this line of argumentation in hyperbolic fashion, in order to support curtailments on everything from speech rights to Fourth Amendment protections. In the case of the Second Amendment, though, actual injuries or death can result from a person abusing the right. This calls for an examination of public-safety claims as case law (and policy) is developed. At the same time, the prevention of future violence cannot be used as an excuse to undermine the entirety of the guarantee, as some have attempted to do with other rights in the past (think here of the military detention of Jose Padilla during the Bush administration.)

To determine what the broad parameters of Second Amendment rights are, it is important to understand where we stand with them today.

Case law that clearly articulated an individual right to own firearms was established by the Supreme Court’s 2008 District of Columbia v. Heller decision. The Heller case invalidated strict municipal gun prohibitions in Washington, D.C., and in doing so set an effective constitutional baseline for individual gun rights. Heller’s “individual rights” standard was subsequently broadened to the states by the McDonald v. Chicago decision, which allowed state-level gun bans to be reviewed under an individual-rights framework.At base, the Heller opinion only dealt with the right to possess a gun in one’s home, and left open many questions regarding what kinds of guns might be kept, and under what circumstances they could be maintained. To discern the answers to these questions, one must subject the Second Amendment to the kinds of analysis that other constitutional rights are routinely subjected to.

What kind of analysis applies?

The future scope of Second Amendment rights will hinge on the kind of analytical framework that is applied going forward. In evaluating matters of constitutional rights, multiple evaluative approaches are used, including strict scrutiny review, intermediate scrutiny review, and others.

Under our legal tradition, no constitutional right is limitless. Legal standards of review take this into consideration, and allow compelling governmental interests to limit the outer fringes of constitutional rights in certain instances.

Each standard of review provides a different framework, and different expectations. Strict scrutiny is frequently applied to First Amendment questions, while less rigorous tests have often been applied to Fourth Amendment matters. Strict scrutiny provides more robust protections, and is more frequently used to overturn government actions. Even so, some restrictions – even on speech activities – can survive strict scrutiny review.

In contrast, less rigorous standards have been frequently applied to Fourth Amendment matters. With an eye toward public safety, lesser levels of scrutiny have been used to constrain Fourth Amendment claims in the face of governmental needs. In practice, this has led to the development of a body of search and seizure jurisprudence that is less rigid than First Amendment case law. From a public-safety perspective, this provides operational flexibility. From a rights-based perspective, this can sometimes provide too much deference to governmental assertions.

What level of scrutiny, then, applies to Second Amendment matters? The Heller opinion held that the possession of a gun at home could survive any level of review, but did not articulate a standard for other matters going forward. Dicta in Heller indicated that many existing gun regulations might very well remain in place – including bans on the sale of guns to the mentally ill. For this purpose, either framework might conceivably apply. Such a regulation could constitute a “compelling interest” that could satisfy the high bar of strict scrutiny, but could also work within more deferential frameworks.

Despite the Supreme Court’s lack of specificity on this front, it seems evident that lower courts will continue to allow leeway for regulations that prevent known, dangerous persons from accessing firearms. The Tenth Circuit has already done this in United States v. Reese, a case that upheld a federal law prohibiting individuals subject to domestic protection orders from possessing firearms. It seems likely that similar cases may eventually establish a case law “ceiling” for Second Amendment rights, based around safety concerns that center on access. Such case law will need to be finely crafted, however, to avoid creating legal frameworks that could be expanded to bar access to other constitutional rights, in other contexts.

Access to specific firearms

Over time, courts will not only need to resolve questions about the outer limits of individual access to firearms, but they will also need to provide guidance about the kinds of firearms that qualify for protection under the Second Amendment.

As with standards of review, the Heller decision provides some insight into this matter, but no definitive resolution. Broad-based assault-weapons prohibitions (such as the one recently enacted by the Connecticut legislature) may become vehicles for clarifying such questions in the near future.

Interestingly, the scope of individual firearms ownership may be determined, in part, by looking back to the 1939 United States v.Miller decision that lower courts relied upon to uphold firearms regulations for many years. In Miller, the Supreme Court refused to overturn the conviction of a man for the possession of a sawed-off shotgun, since the Court could not “… say that the Second Amendment guarantees the right to keep and bear such an instrument.”

In Miller, the Supreme Court spent much time discussing the Second Amendment in the context of its militia clause, but also cited historical sources that noted that militia members furnished their own arms. Thus, Miller suggested a two-pronged test regarding the arms that were covered by the Second Amendment. Arms that fell under the scope of constitutional protection were those that:

1. Were in common use, and:

2. Could serve a militia (military) purpose.

Heller clearly supported the “common use” prong in making its case for the protection of a pistol at home, and it did not explicitly adopt the “militia purpose” criteria. In addition to pistols, this “common use” criteria would easily cover many of today’s long guns, including many colloquially referred to as “assault rifles.” Semi-automatic long guns like the AR-15 (versions of which fell under the 1994 federal assault weapons ban) are in wide circulation throughout the country, and squarely fit the “common use” criteria. Thus, regulations that ban categories of widely available weapons or accessories may trigger review by the courts. During such a review, we may discover more about the “floor” of the Second Amendment, and it is likely far more inclusive than just possessing a pistol.

Going forward, the “common use” analysis will likely not be the only test used to identify protected firearms, for that could freeze technological developments and case law within a specific era. This would place Second Amendment rights at variance from other Constitutional liberties (such as those of the Fourth Amendment), which have been applied to varying circumstances and technological platforms over time.

In the Heller majority opinion, Justice Antonin Scalia noted that the Second Amendment would not call into question existing restrictions on automatic weapons. Heller’s dicta suggests that an analysis could be developed to protect core Second Amendment interests (personal protection and other purposes) while still allowing some regulation of firearms technology on public safety grounds. Such an analysis would likely entail applying some sort of scrutiny-based framework to questions about firearms technology. This kind of framework might look upon wide-ranging gun bans with skepticism, and instead offer support to tiered regulations that cover limited classes of arms (machine guns, for instance) that are peripheral to securing the basic purposes of the right.

Post-Heller review of Second Amendment cases

Subsequent to Heller, lower courts have been busy reviewing firearm cases of all types. For instance, appellate courts in Maryland and Illinois have been split in their review of concealed-carry laws. The 7th Circuit Court of Appeals held that an Illinois ban on concealed-carry activities violated the Second Amendment, while the Fourth Circuit upheld Maryland’s concealed-carry regulations.

The “standard of review” question was addressed by the Fifth Circuit Court of Appeals late last year, in the NRA v. BATFE case. The case centered on a federal law that prohibited the sale of firearms to persons under 21 years of age. In NRA, three plaintiffs sued the federal government, claiming that the law violated the Second Amendment and the equal protection clause of the Fifth Amendment. The appellate court subsequently affirmed the judgment of the district court, which ruled in favor of the government.

More to the point, the NRA v. BATFE decision indicated that Second Amendment analysis should involve a “two-step” process that first reviews a claim to see if it includes “conduct that falls within the scope of the Second Amendment” and then makes a determination about whether such conduct should be reviewed under “strict” or “intermediate” scrutiny. This type of multi-level framework may make it ripe for wider adoption.

Looking ahead

In the wake of Heller and McDonald, courts have much to address regarding questions of firearms ownership and access. Background checks, private sales, and other issues that regulate the ability to keep or acquire arms pose intricate questions, as do other Constitutional issues outside of the Second Amendment. Federal weapons bans that bar possession absent an interstate sale may implicate the Commerce Clause, for instance.

What is clear from the application of other rights-based case law is that the Second Amendment must have substance, but at the same time it is not limitless. Discerning its boundaries is important for establishing clarity in both the public safety and individual rights contexts. In emotionally charged and tragic times, political bodies are sometimes unable to arrive at the proper balance between the two, leaving courts to make further determinations and refinements.

Here, too, we ought to tread carefully, for our constitutional rights do not exist in isolation, but rather within an interconnected tapestry. Case-law determinations about the interpretation and extent of any right can stretch beyond a single category, and can impact the overall balance of power between citizens and the state. In times of turmoil, these are developments that we all must watch closely.

Matt Ehling is a St. Paul-based writer and television producer. He is the president of Public Record Media (PRM), a media organization that seeks out and publishes government documents.

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Comments (9)

Ignoring the first half of the one sentence amendment. as it relates to the "prefatory" language about militia is absolutely disrespectful of the Constitution.

The full sentence:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The process by which this wording was arrived at:

The original body of the Constitution was found wanting by the states that were to ratify the Constitution. Objections were made to the First Congress by the 13 state legislatures. The First Congress reviewed the complaints and prepared 12 amendments in response via a group process of much discussion. The amendments were brought back to the 13 various state legislatures, reviewed, analyzed, and discussed. 10 of the 12 proposed amendments were ultimately approved.

The was nothing casual or ad hoc about the wording of the amendments. The was nothing off-hand or swift about the deliberation. The 13 states were giving up a significant sovereignty in the process of joining in the Union. There were specific concerns that were being addressed by the most knowledgeable, concerned and involved people of the time.

The idea that--out of all these legislative bodies and all of these remarkable people, in all that time and deliberation and debate-- no-one could come up with the simple wording that "the personal right to bear arms shall not be abridged" is patently absurd and deeply disrespectful to the people and process that struggled considerably. It is historically impossible to believe so.

But hey, people will do so in the service of their ideology.

Eventually, as it does happen in every one of these forums and discussions, someone will bring out the equivalent of Charlton Heston's, "You'll only pry my gun from my cold, dead hand.", and imply a patriot ready to begin a new revolutionary war in the defense of "their" Constitutional rights.

I try to envisage what would happen, if a certain president did something that would be "unconstitutional" with respect to the second amendment.

Would these "patriots" immediately hop in their cars and trucks and attack the White House? Who would be their enemy at that point? If they respected the Constitution and its processes, wouldn't they wait for the presumably prompt legislative and legal actions that would defend the Constitution? Or do they regard the Constitutional process with so little respect?

And if there were no effective prompt legislative or legal response, would they wait for the next election to elect representatives of their will that would enact their will and "restore" their rights? After all, a complete majority change of the executive and legislative branch would be effected in a maximum of 4 years. It seems as thought that if they cannot wait the election cycle or two, they, themselves, are tearing down the Constitution. Who then, in that intervening time, is their enemy--the White House, Congress, federal employees the federal army?

And if in those few years, if they did not effect elective legislative or executive change, it should come to their realization that they are a minority in a representative democracy. And if they persist after that point with force of arms, they, themselves are attempting to destroy the democratic process that is at the heart of the American system. Who then is their enemy, all of the above plus any voters that voted differently?

Each step of the proposed new American revolution further destroys the Constitution it seeks to protect.. And in the end, if the insurrection is successful, do you think the revolutionaries would keep the same old Constitution? The Constitution that did not clearly enumerate their rights? The Constitution that did not "protect their rights"? The Constitutional checks and balances that did not protect "their rights". The Constitution that "removed their rights" via a democratic process?

Yeah, an amendment that didn't exist when the Constitution was ratified and that the author considered completely unnecessary is the "bullwork" of freedom. All that stuff about elections and check and balances is just window dressing until you get the Second Amendment.

It may or may not be important to remember that this interpretation of the Second Amendment used in Heller is the product of academic fraud. Heller itself is simply incoherent and it remains to be seen what if any rational law can flow out of it.

The second Amendment does not legalize armed rebellion against tyrannical governments of the future. Armed rebellion is explicitly classified as treason in the Constitution. Neither does the Second Amendment establish gun ownership as a right of personal self defense.

The Constitution is about BIG ideas, not burglary. The Constitution dictates what government can do. The constitution says nothing nothing about Torts, or having babies, or real estate sales, or fire codes because the authors were well aware of the existing mountains of case law that applied to all such matters... including personal self defense. There's nothing in the Constitution about "dueling" for instance. Furthermore the Second Amendment refers to military weaponry (i.e. "arms") no weapons of personal self defense. In short the Second Amendment guarantees the States rights to create and maintain militias for the common defense.

It may be important to know this despite the fact that we currently have a two supreme court rulings that contradict it.

The reference to Blackstone and the English Bill of Rights is always kind of puzzling. That document did NOT establish individual gun rights, it reaffirmed Parliaments rights to make laws. While Blackstone did indeed write commentary establishing the right own guns as common law, the history of England is of one of 300 years of Parliamentary regulation of gun ownership. A mere 8 years after Blackstone's Commentary Parliament disarmed the Scotts following the Jacobite Rebellions. Parliament continued to restrict guns with laws passed in 1725, 1746, 1824, 1828, 1831, and 1870. Then came the 1903 Pistol Act and this continues right up to 1996 with a strengthening the broad prohibitions on gun ownership. Individual gun rights were clearly never recognized by Parliament or the Crown nor have they been exercised by the people of England.

And of course, Blackstone had absolutely nothing to do with writing the US Constitution.

I bet there were tens of thousands of people in Boston that were 'locked up" in their homes for fear of the "Marathon bombers" would come into their house WISHED THEY HAD SEMI-AUTOMATIC GUNS WITH A LARGE MAGAZINE !

You know what? I'm a gun owner and believer that the 2nd Amendment actually protects individual rights to own firearms. However, this is ridiculous. It takes one bullet to stop a man. It takes 2 to stop 2 men. If you need a large clip to "protect yourself" from 2 men, you have no business handling a dangerous weapon. In other words, I do not support the arming of incompetent people. The 2nd Amendment means more than simply sticking a weapon in the hands of the masses. The first part of the Amendment means something. It means that your individual right to be armed is in support of a state militia made up of individuals. If you don't know how to use that weapon, you have no business having it because you'd be worthless to a militia.

And if you want to claim that you need to have more bullets to stop 2 men with guns and bombs, well, maybe you have a point. Of course, if you need more weaponry to stop them, it seems to suggest that a gun solution in that situation is the wrong solution. Perhaps the better solution is to lock your door. And, hey! It worked.

Yeah, if only tens of thousands of people had been running around the streets with their own assault weapons, that would have been soooo much safer. Ya know that Texas Prosecuter and his wife were armed to the teeth and on the lookout... they didn't even get a single shot off.

The reasons are simple -- the Second provides cover for those who want zero regulations on guns. Between the NRA and their influence on members, and subsuqeuntly on legislators, even tweaking the edges of gun control has failed. And even with background checks, if we could get them, there are still major issues of assault weapons and other measure we need to grow into a civilized safe society.

Admittidly, any repeal is unlikely. But the fact is, we are stuck with too many guns, of too much power, by too many dangerous people, in too many dangerous places like our major cities. Frankly, as depressing as it is, I see no easy, fast or effective way out of this quandry. Batten down the hatches.

Miller described the concept of common use as one prong (and Heller confirmed), but this seems ill-defined, and I think use is being conflated with ownership. There are 300 million privately owned firearms in the country, how many of those are used with any regularity (or ever).

Ownership is not use. The AR-15 is a very popular weapon, and is common among gun owners, but are they all used, or do many of them remain in the closet, or locked in a safe somewhere, never being fired. I think the Court got this wrong in Heller, and Scalia, who normally likes to find definitions of words, failed in this instance.

Minnesota has a law that says employers cannot forbid their employees from having guns in their cars out in the parking lot. So what happens if an employer decides s/he does not want to employ anyone owning a gun? Will the gun owners be able to stretch their protected status even further?

Also, I find it interesting how quick the hackles rise on the gun rights people, and how frequently they neither read nor listen carefully to anyone else's opinions. One might say the folks with the hair triggers are the ones with the guns.

And then there's the fantasies they have about how they "shut down some predator," just by showing they had a gun.

I don't mind people having fantasies, or opinions. I do mind that their weaponry and attitudes shut down any meaningful discussion. It's one thing to live out in the countryside with lots of elbow room. It's another thing entirely to live in the same community where dozens, if not hundreds, of people die every year from gun violence.